Seegars v. Gonzales

Decision Date08 February 2005
Docket NumberNo. 04-5081.,No. 04-5016.,04-5016.,04-5081.
Citation396 F.3d 1248
PartiesSandra SEEGARS, et al., Appellants/Cross-Appellees v. Alberto GONZALES, Attorney General of the United States and Anthony A. Williams, Mayor, District of Columbia, Appellees/Cross-Appellants
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (No. 03cv00834).

Stephen P. Halbrook argued the cause for appellants/cross-appellees. With him on the briefs was Richard E. Gardiner.

R. Ted Cruz, Solicitor General, Attorney General's Office of State of Texas, argued the cause for amici curiae State of Texas, et al. in support of appellant. With him on the brief were Greg Abbott, Attorney General, Troy King, Attorney General, Attorney General's Office of State of Alabama, Charles J. Crist, Jr., Attorney General, Attorney General's Office of State of Florida, Thurbert E. Baker, Attorney General, Attorney General's Office of State of Georgia, Lawrence G. Wasden, Attorney General, Attorney General's Office of State of Idaho, Phill Kline, Attorney General, Attorney General's Office of State of Kansas, Charles C. Foti, Jr., Attorney General, Attorney General's Office of State of Louisiana, Michael A. Cox Attorney General, Attorney General's Office of State of Michigan, Jim Hood, Attorney General, Attorney General's Office of State of Mississippi, Mike McGrath, Attorney General, Attorney General's Office of State of Montana, Jon Bruning, Attorney General, Attorney General's Office of State of Nebraska, Jim Petro, Attorney General, Attorney General's Office of State of Ohio, Lawrence E. Long, Attorney General, Attorney General's Office of State of South Dakota, Mark L. Shurtleff, Attorney General, Attorney General's Office of State of Utah, Jerry W. Kilgore, Attorney General, Attorney General's Office of Commonwealth of Virginia, and Patrick J. Crank, Attorney General, Attorney General's Office of State of Wyoming.

Daniel Meron, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees/cross-appellants. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Mark B. Stern and Lewis Yelin, Attorneys.

Lutz Alexander Prager, Attorney, Office of Attorney General for the District of Columbia, argued the cause for appellee The District of Columbia. With him on the brief were Robert J. Spagnoletti, Attorney General, and Edward E. Schwab, Deputy Attorney General.

Andrew L. Frey, David M. Gossett, Mathew S. Nosanchuk, and Eric J. Mogilnicki were on the brief for amici curiae The Brady Center to Prevent Gun Violence, et al. in support of appellee.

Before: SENTELLE and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

STEPHEN F. WILLIAMS, Senior Circuit Judge.

Plaintiffs raise Second Amendment and local law claims against provisions of the District of Columbia's criminal code that bar them from registering and lawfully possessing pistols within the District of Columbia, or maintaining firearms in their homes free of mandates that they be unloaded and disassembled, or secured by a trigger lock. The district court held that the plaintiffs lacked standing to challenge the provisions limiting the lawful possession of pistols, but that one plaintiff (Hailes) could challenge the "trigger lock" provision. Seegars v. Ashcroft, 297 F.Supp.2d 201, 203-04 (D.D.C.2004). Because we find that under controlling circuit precedent no plaintiff has standing to challenge either provision, we affirm in part and reverse in part.

* * *

D.C.Code § 7-2502.01 prohibits a person from possessing a firearm in the District of Columbia unless it is validly registered. Pursuant to D.C.Code § 7-2502.02(a)(4), pistols not already registered before September 24, 1976 may not now be registered. And D.C.Code § 22-4504(a) prohibits carrying a pistol either openly or concealed on or about one's person without a license within the District of Columbia. As a result, it is not possible in the District to purchase and lawfully possess a new pistol — or indeed any pistol not registered here three decades ago. A fourth provision requires that registrants keep firearms unloaded and disassembled, or bound by a trigger lock or similar device, subject to exceptions for firearms kept at places of business or firearms that are being lawfully used for recreational purposes in the District. See D.C.Code § 7-2507.02. All plaintiffs in this case would like to lawfully possess pistols in the District. Joint Appendix ("J.A.") 14-15. Plaintiff Jordan is the only plaintiff who owns a pistol, but he stores it outside the District in order to avoid violating the law. J.A. 15. Plaintiff Hailes possesses a shotgun that she stores at her home, and would like to remove the trigger lock when she feels endangered. J.A. 14-15. Most of the plaintiffs allege that they live in high-crime neighborhoods and would like to possess loaded weapons in their homes for protection, not secured by a trigger lock; because of the threat of criminal prosecution, they forego what they believe would be the additional security of possessing pistols or possessing a shotgun ready for immediate use. Id. Under 28 U.S.C. § 2201 plaintiffs seek a declaration that the challenged provisions are unlawful.

No plaintiff in this case has been arrested and prosecuted for violating the disputed provisions of the Code, so plaintiffs' case constitutes a "preenforcement" challenge. To meet the "case and controversy" requirement of Article III they must allege an "injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996).

Assessing standing to attack a statute on constitutional grounds, the Supreme Court has said:

When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citing Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)) (internal quotation marks omitted). Compare Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 n. 29, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (suggesting that ripeness for pre-enforcement review of criminal statutes was to be resolved "on a case-by-case basis, by considering the likelihood that the complainant will disobey the law, the certainty that such disobedience will take a particular form, any present injury occasioned by the threat of prosecution, and the likelihood that a prosecution will actually ensue").

In addressing the plaintiff's side of the story, some circuits have demanded that he express an unconditional intention to engage in the proscribed behavior, regardless of whether the statute is invalidated, see, e.g., San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1127 (9th Cir.1996) (discussing lack of allegation of a specific time and date at which plaintiffs intended to violate the Crime Control Act). But any such requirement seems inconsistent with our circuit's law, see, e.g., American Library Ass'n v. Barr, 956 F.2d 1178, 1196 (D.C.Cir.1992); but cf. Martin Tractor Co. v. FEC, 627 F.2d 375, 382-83 (D.C.Cir.1980) (holding portion of preenforcement challenge not ripe where appellants "allege that their behavior has thus far conformed to the statutory mandate. They make no allegation of an intention imminent or otherwise to violate the statute...."), and has been expressly rejected by other circuits, e.g., Mobil Oil Corp. v. Attorney General of Virginia, 940 F.2d 73, 75 (4th Cir.1991) ("Public policy should encourage a person aggrieved by laws he considers unconstitutional to seek a declaratory judgment against the arm of the state entrusted with the state's enforcement power, all the while complying with the challenged law, rather than to deliberately break the law and take his chances in the ensuing suit or prosecution.").

On the government's side, the requirement of a credible threat of prosecution ensures that the threatened injury be imminent. Imminence can also be evaluated in terms of ripeness, but the severity of the required threat is independent of the doctrinal hook. See Doe v. Duling, 782 F.2d 1202, 1206 n. 2 (4th Cir.1986). Unfortunately the adjective "credible" says little or nothing about the requisite level of probability of enforcement, and clarity prevails only at the poles. If the threat is imagined or wholly speculative, the dispute does not present a justiciable case or controversy. Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Evidence that the challenged law is rarely if ever enforced, for example, may be enough to defeat an assertion that a credible threat exists. See, e.g., D.L.S. v. Utah, 374 F.3d 971, 974-75 (10th Cir.2004) (no standing to challenge the constitutionality of Utah's sodomy statute where plaintiff had never been charged, prosecuted, or directly threatened with prosecution, and where prosecutors were apparently not actively enforcing the law); Clarke v. United States, 915 F.2d 699, 701-02 (D.C.Cir.1990) (discussing mootness) (no live case or controversy where there had been no prosecution under the Anti-Deficiency Act and the government had expressed its view that no successful prosecution could be maintained). By contrast, actual threats of arrest made against a specific plaintiff are...

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